Citation Nr: 0023631
Decision Date: 09/06/00 Archive Date: 09/12/00
DOCKET NO. 94-21 862A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to a disability rating in excess of 30 percent
for lobectomy, left lower lobe, residuals of bronchiectasis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Kitlas, Associate Counsel
REMAND
The veteran served on active duty from August 1961 to June
1963.
Service connection was granted for lobectomy, left lower
lobe, residuals of bronchiectasis by an October 1963 rating
decision.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an August 1993 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California, which denied the veteran's claim for
a rating in excess of 30 percent for the lobectomy
disability.
In April 2000, the RO sent correspondence to the veteran
regarding his request for a personal hearing before the
Board's traveling section (hereinafter, "Travel Board
hearing"). The RO inquired whether the veteran wished to
withdraw his request for a Travel Board hearing, or whether
he wanted a different type of hearing in conjunction with his
appeal. No response appears to be on file from the veteran
in response to the RO's April 2000 letter. However, in a
June 2000 statement, the veteran's accredited representative
reported that additional arguments would be presented at the
upcoming Travel Board hearing.
The RO transferred the records in this case to the Board in
June 2000. There is no indication that the RO scheduled the
veteran for a hearing. Accordingly, the Board sent
correspondence to the veteran in July 2000 inquiring whether
he still desired a Travel Board hearing. Moreover, the Board
informed the veteran that if he did not respond within 30
days, then it would be assumed that he still desired a Travel
Board hearing and his case would be remanded for that
purpose. No response was received in regard to this
correspondence. Therefore, the Board must conclude that the
veteran desires a Travel Board hearing in the instant case.
Since Travel Board hearings are scheduled by the RO (See 38
C.F.R. § 20.704(a)), this case is REMANDED for the following:
The RO should schedule the veteran for a
hearing before a Member of the Board. A
copy of the notice to the veteran of the
scheduling of such a hearing should be
placed in the record.
After the veteran has been accorded an opportunity to present
testimony at a Travel Board hearing, the case should be
returned to the Board for further appellate consideration, if
in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Gary L. Gick
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).